Photo of Suspect in NYC Truck Attack Likely Fair Use

This image made from a video provided by Tawhid Kabir shows the suspect in a deadly attack being apprehended by police on Oct. 31, 2017, in New York. The man mowed down pedestrians and cyclists along a busy bike path near the World Trade Center memorial on Tuesday before he was shot in the abdomen by police after jumping out of the truck, authorities said. (YouTube/Tawhid Kabir via AP)

MANHATTAN (CN) – Weeks after eight pedestrians and bicyclists were mowed down in a New York City truck attack, a federal judge found Friday that a photographer who was at the scene is unlikely to prevail on copyright claims.

The complaint against ABC takes issue with reporting by the network on the Oct. 31, 2017, attack.

Alex Cruz, who snapped a picture of the police’s suspect at the scene, claims that ABC infringed his copyright by sharing the image with viewers.
Cruz’s photo shows Sayfullo Saipov lying on the street after a police officer shot him down beside the carnage of his doing on the West Side Highway bike path.

Finding that ABC will likely defeat the case, U.S. District Judge Lewis Kaplan noted Friday that he may not let Cruz proceed with the action unless he posts security, including attorneys’ fees.

This is because ABC would be entitled to recover costs, including attorneys’ fees, if is fair-use defense prevails.

“Security often has been required where the merits of a plaintiff’s case are questionable and there is doubt as to the plaintiff’s ability to satisfy any costs judgment that ultimately may be imposed,” the four-page opinion states.

This undated photo provided by the St. Charles County Department of Corrections in St. Charles, Mo., via KMOV shows Sayfullo Saipov. Authorities say the same man used a rented pickup truck on Oct. 31, 2017, to mow down pedestrians and cyclists along a busy bike path near the World Trade Center memorial, killing eight. Officials who were not authorized to discuss the investigation and spoke on the condition of anonymity identified the attacker as Saipov. (St. Charles County, Missouri, Department of Corrections/KMOV via AP)

Cruz’s attorney Richard Liebowitz did not immediately respond to email and telephone request for comment on the ruling.

Though the order does not make any decision as to whether the disputed photograph is protectable, Kaplan left little doubt that he believed the image to be fair game for news outlets, falling “squarely” into the Copyright Act’s allowances for “criticism, comment, [or] news reporting.”

“The court of course is not fully informed with respect to the merits of plaintiff’s case and therefore does not prejudge them,” Kaplan wrote. “Nevertheless, even on the face of the complaint, there appear to be serious questions as to the merits of plaintiff’s claim.”

One precedent that the judge predicted would defeat Cruz’s case involved still frames from the iconic footage of John F. Kennedy’s assassination.

“Moreover, Time Inc. v. Bernard Geis Associates, the case that held that the use in a book of copies of frames of the famous and copyrighted Zapruder film of the assassination of President Kennedy was fair, at first blush seems to tend substantial support to a defense of fair use,” he said.